Patrick J. Sobkowski, Marquette University, has posted Presidentialism at the Highest Ebb: Executive Power in the Age of Trump, which is forthcoming in the University of Dayton Law Review:
On July 1, 2024, the Supreme Court decided Trump v. United States. In a 6-3 decision, the Court held that presidents are absolutely immune from criminal prosecution for official acts taken pursuant to his “conclusive and preclusive” constitutional powers. Trump represents a watershed moment in the Supreme Court’s separation of powers jurisprudence. Critics worried that the Court’s decision put the president above the law. Because Trump creates a constitutional rule that places the president’s powers above those of Congress, the decision presents an interesting opportunity to contrast it to another famous separation of powers decision.
Youngstown Sheet & Tube Co. v. Sawyer is perhaps the most important separation of powers case the Supreme Court has ever decided. After President Harry Truman decided to seize the nation’s steel mills to avert a labor strike, the Court struck down his executive order as beyond the powers of the president. The Court’s decision in Youngstown stands for the propositions that (1) the president is not above the law, even in national emergencies; and (2) much of the president’s power flows not from implied or inherent constitutional authority, but from statutory authorizations from Congress.
This Article presents the first comprehensive comparative analysis of Trump and Youngstown. A close reading and attention to the historical and political context surrounding both cases reveal both striking similarities and differences. I employ archival evidence to shed light on the arguments presented by the Truman administration in defense of the seizure, as well as public reaction to the decision. The Court’s shift from functionalism to formalism in the period between the two cases also carries important implications for the separation of powers going forward.
--Dan Ernst
